The cross‐border movement of cultural property is highly regulated. While many engaged in the business of exporting and importing cultural property will understand the legal complexities involved, the determination of whether a particular transaction complies with Canadian law is made on a case‐by‐case basis. As such, parties should discuss the matters addressed below with their advisors to review all aspects of transaction prior to engaging in the regulated activity.
In Canada, the regulation of the cross‐border movement of cultural property is achieved principally through two statutory controls: the Cultural Property Export and Import Act and the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act. Cultural property can be broadly defined as objects of historical, cultural and scientific significance, including objects of art.
Under the Cultural Property Export and Import Act, persons are prohibited from exporting or attempting to export (whether permanently or temporarily) from Canada cultural property set out in the Canadian Cultural Property Export Control List (the Control List) without a permit. These restrictions may affect gifting and estate planning of bequests of art, antiques or other cultural property to beneficiaries living outside of Canada.
The Control List identifies cultural property the control of which has been deemed necessary “to preserve the natural heritage in Canada”, including certain objects of ethnographic material culture, objects of applied and decorative art, objects of fine art, textual records, graphic record and sound recordings of a certain origin, age and/or value. Importantly, the Control List captures non‐Canadian materials, including, for example, certain objects made, reworked or adapted by aboriginal persons of another country, and certain objects of fine art made outside of Canada that have a certain fair market value. The Control List does not apply to objects which are either less than 50 years old, or made by a person that is still living. Export permits will be issued immediately (and without further consideration of whether an object is included on the Control List) where certain circumstances are met, for example, if it can be established that the object in question has not been in Canada for 35 years. A decision to deny an export permit may be appealed to the Canadian Cultural Export Review Board.
The Cultural Property Export and Import Act also implements Canada’s obligations under international agreements to combat the illicit traffic in cultural property. Accordingly, the Act prohibits persons (including Canadians citizens and permanent residents outside of Canada) from exporting or transferring cultural property from certain occupied territories except as permitted under the applicable laws of the territory, or as is necessary to protect or preserve the property in question. The Act further prohibits the importation of foreign cultural property illegally exported from a country with which Canada has a cultural property agreement on the illicit international traffic in cultural property (e.g., the UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property).
The Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act may also apply to (and restrict) the export, import, transfer or possession of objects of art to the extent that these consist of or incorporate animals or plants (or derivatives thereof) identified as endangered. The list of endangered plants and animals is extensive, including, for example, certain species of whales, vicunas, Asian and African elephants, and certain varieties of trees. Among other things, the Act requires that, subject to certain exceptions, a permit or certificate of written authorization be obtained for the export, import and/or interprovincial transport of any identified plant or animal (or derivative thereof), and prohibits the import of any plant or animal (or derivative thereof) that possessed, distributed or transported in contravention of any foreign law. The Act is sufficiently broad to capture, for example, jewellery or sculptures made of ivory or whale bone, and wooden frames and collectible furniture made from a species of wood identified as endangered.
The shipping packaging for art work and other cultural property may also be subject to border restrictions. In Canada, the Canadian Food Inspection Agency (CFIA) regulates all wood packaging including but not limited to crates and palettes. Untreated wood packaging is strictly prohibited. Persons engaged in the shipment of goods should therefore verify the admissibility of any wood packaging prior to shipment to or from Canada, and may find it preferable to avoid wood packaging where possible. Please note that many countries apply similar or more stringent standards.
Prior to engaging in the export and import of cultural property, institutions, organizations and individuals need to ascertain whether the object in question is subject to Canadian restrictions on trade. As indicated above, this exercise necessarily requires knowledge of the cultural property itself (including value, composition/materials, and origin), as well as a thorough understanding of applicable Canadian laws and, those of the country to or from which the goods are being shipped.